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1 Policy FTA SAFETY SENSITIVE DRUG AND ALCOHOL PROGRAM Section/Number: Total Pages: 25 Dept. Human Resources Effective 1/16/1995 Responsible: Date: Special Note: SupercedesSupersedes all previous FTA Safety Sensitive Drug/Alcohol policies Revision No: 1 - (6/14/ (7/11/1995) 3 - (1/1/1999) 4 - (11/1/2001) 5 - (12/1/2004) 6 - (12/31/ (7/29/11) I. Policy: The Metropolitan Council is dedicated to providing safe, dependable transportation services to the public and provide a safe work environment for Metropolitan Council employees that is free from risks which result from alcohol and prohibited drug use. Metropolitan Council employees are our most valuable resource and it is our goal to provide a healthy, safe, and secure work environment. In meeting these goals, it is our policy to: assure that employees are not impaired in their ability to perform assigned duties in a safe, productive, and healthy manner; create a workplace environment free from the adverse effects of drug and alcohol substance abuse or misuse; prohibit the unlawful manufacture, distribution, dispensing, possession, or use of controlled substances; encourage employees to seek professional assistance any time personal problems, including alcohol or drug dependency, adversely affect their ability to perform their assigned duties; provide required training as outlined in 49 CFR Part 655 and education on the ramifications of drug and/or alcohol use on personal Page 1 of 25

2 health, safety, and the work environment as well as roles, responsibilities and testing process; and monitor contractors compliance with FTA regulations by confirming and reviewing the existence and administration of drug and alcohol testing programs for their safety sensitive employees. This Policy is applicable to all FTA safety sensitive employees working at the Metropolitan Council s Transportation Division which includes Metro Transit, Transportation & Transit Development and Metro Mobility. II. Purpose of Policy: The purpose of this Policy is to assure employee fitness for duty and to protect Metropolitan Council employees, passengers, and the public from the risks posed by the use of alcohol and prohibited drugs. Alcohol and other drugs can impair essential safety skills on the job, such as vision, judgment and coordination. This can increase the risk of accidents and endanger public safety. Using alcohol and other drugs can lead to a variety of physical problems including: cancer and damage to vital organs, depression and other mental problems, social problems and isolation from family and friends. In addition, alcohol and drug use can affect job performance in the areas of: increased absences, frequent accidents, decline in quality/quantity of work, lack of cooperation, poor concentration and judgment, and lack of motivation. Participation in The Metropolitan Council s Drug and Alcohol testing program is a requirement of each employee covered by this Policy. Each employee hired, promoted or transferred to a safety sensitive position is required to participate in a policy training program. The program reviews the Policy, problems that arise as a result of alcohol misuse and drug abuse, resources available to employees if a problem exists, and the consequences associated with various testing categories. Written acknowledgment by employee of training will be required. The signs of alcohol misuse include but are not limited to a lack of coordination, constricted pupils, bloodshot or watery eyes, aggressive or antagonistic behavior, slurred speech and slowed reaction time. If an employee, coworker or manager suspects an alcohol problem exists, the Metropolitan Council has designated an Employee Assistance Program (EAP) for confidential intervention. The intervention process is accessible through an Employee Assistance Program (EAP) to assist employees in assessment of alcohol misuse in a confidential manner. Professional Page 2 of 25

3 counselors can provide assistance before the misuse turns into a crisis situation. Reference the supplemental attachment page of this Policy for a current provider listing. III. Background and reasons for Policy: This Policy is also intended to comply with all applicable Federal regulations governing workplace anti-drug and anti-alcohol programs in the transit industry. The Federal Transit Administration (FTA) of the U.S. Department of Transportation (DOT) has enacted 49 CFR Part 655 that mandates drug and alcohol testing for safety sensitive positions and prohibits employees from performing safety sensitive functions when an employee has tested positive for drugs and/or alcohol. The regulations governing the procedures for testing programs are set forth in 49 CFR Part 40. Copies of the Federal regulations are available for inspection in Metro Transit s Human Resources office and on the Council s intranet site, MetNet. The DOT has enacted 49 CFR Part 29, The Drug-Free Workplace Act of 1988, which requires the establishment of drug-free workplace policies and the reporting of certain drug-related offenses. The Metropolitan Council has established an employee education and training program for all covered employees, including: (a) Education. The education component includes display and distribution to every covered employee of: informational material and a community service hot-line number for employee assistance. (b) Training. (1) Covered employees. Covered employees will receive at least 60 minutes of training on the effects and consequences of prohibited drug use on personal health, safety, and the work environment, and on the signs and symptoms that may indicate prohibited drug use. (2) Supervisors. Supervisors and/or other company officers authorized by the Metropolitan Council to make reasonable suspicion determinations will receive at least 60 minutes of training on the physical, behavioral, and performance indicators of probable drug use and at least 60 minutes of training on the physical, behavioral, speech, and performance indicators of probable alcohol misuse. IV. Implementation/Accountability: Page 3 of 25

4 This Policy applies to all FTA safety sensitive employees, contractors and volunteers when they are on Metropolitan Council property or when performing any Metropolitan Council related business. This Policy applies to off-site lunch periods or breaks when an employee is scheduled to return to work. This Policy also applies to certain off-duty conduct discussed in Section 2.0. Volunteers, while performing Metropolitan Council related business are subject to drug/alcohol testing under the independent authority of the Metropolitan Council. Refer to Section 15 for a list of safety sensitive covered positions. 1.0 Conduct Prohibited Under FTA Regulations 1.1 Alcohol Use No employee will report for duty or remain on duty when his/her ability to perform assigned functions is adversely affected by alcohol. No covered employee will consume alcohol while on duty. No FTA safety sensitive employee will consume alcohol within 8 hours prior to performing safety sensitive functions. No FTA safety sensitive employee will consume alcohol during the hours that they are on paid call. Covered employees who have consumed alcohol during specified on-call hours, whether the employee is on call on company premises or not, have the opportunity to inform their immediate supervisor of their inability to perform his or her safety-sensitive function. If the covered employee has acknowledged use, then the covered employee is required to take an alcohol test even if he claims ability to perform his or her safety-sensitive function. In this circumstance, the employee will be subject to the discipline provisions outlined in Section 6. No FTA safety sensitive employee will consume alcohol up to eight hours following an accident or until tested, whichever occurs first, unless it is determined by a supervisor that testing is not necessary. Violation of these provisions is prohibited and punishable by disciplinary action up to and including termination. 1.2 Use of Prohibited Substances Page 4 of 25

5 Covered employees may not use prohibited drugs at any time unless legally prescribed. Prohibited drugs include: marijuana, amphetamines, opiates, phencyclidine (PCP), cocaine, and any of their metabolites. The Metropolitan Council has authority to apply for a FTA waiver that would, under limited circumstances, permit the Council to stand an employee down following the MRO s receipt of a laboratory report of a confirmed positive test, an adulterated test or a substituted test. 1.3 Failure to Comply with Testing Requirements Failure to comply with testing requirements includes the following as defined by FTA regulations but is not limited to: refusal to take a drug or alcohol test, as provided by 49 CFR Part 40, including: failure to appear for a required test in a timely manner (except a preemployment test); failure to remain at the test site until the testing process is complete; failure to provide an adequate specimen amount without a valid medical examination; failure to submit to a medical exam as directed by the MRO or the DER as authorized under 49 CFR Part 40; fail or decline to take a second drug test if directed by the collector or the DER; failure to sign the Step 2 certification of the Alcohol Testing form; In a case of a directly observed or monitored collection in a drug test, fail to permit the observation or monitoring of your provision of a specimen; and failure to cooperate with any part of the testing process (e.g., refuse to empty pockets when so directed by the collector, behave in a confrontational way that disrupts the collection process); failure to follow an observer s instructions to raise and lower clothing and turn around during a directly-observed test; possessing or wearing a prosthetic or other device used to tamper with the testing process; admitting the adulteration or substitution of a specimen to the collector or MRO; and the MROs verification of test as adulterated or substituted. attempting to falsify test results through tampering, contamination, adulteration, or substitution; and Page 5 of 25

6 leaving the scene of an accident without a valid reason before the necessary tests have been conducted. In addition, providing false information in connection with a test will be deemed failure to comply with testing requirements Employees who participate in any of the above described activities, except an inability to produce a specimen, or any other activities regarded as a failure to comply with testing requirements will be: 1. immediately removed from a safety sensitive position; 2. terminated from employment; and 3. referred to the Substance Abuse Professional (SAP) 2.0 Conduct Prohibited Under Metropolitan Council s Independent Authority In addition to the conduct prohibited by the FTA under Section 1.0 of this Policy, the Metropolitan Council has adopted the following prohibitions and policies based on independent authority. 2.1 Manufacture, Trafficking, Possession, and Use Any employee engaging in the manufacture, distribution, dispensing, possession, or use of prohibited substances on Metropolitan Council premises, in Metropolitan Council vehicles or while conducting Metropolitan Council business or in any manner which relates to the employee s position will be subject to disciplinary action up to and including termination. Law enforcement shall be notified, as appropriate, where criminal activity is suspected. This Policy is not intended to alter any other Metropolitan Council rule or policy related to off duty conduct. 2.2 Intoxication/Under the Influence Any employee who is reasonably suspected of being intoxicated, impaired, under the influence of a prohibited substance, or not fit for duty shall be suspended from job duties pending an investigation and verification of condition including drug and/or alcohol testing. 2.3 Legal Drugs Page 6 of 25

7 The appropriate use of legally prescribed drugs and non-prescription medications is not prohibited. However, the use of any substance which carries a warning label that indicates that mental functioning, motor skills, or judgment may be adversely affected must be reported to supervisory personnel and medical advice obtained, as appropriate, before performing work-related duties. Employees must report the use of medically authorized drugs or other substances which may alter job performance to his/her immediate supervisor and provide proper written medical authorization from his/her physician. The failure to report the use of such drugs or other substances as specified above, or the failure to provide proper medical authorization can result in disciplinary action. It is the employee s responsibility to determine from his/her physician/practitioner whether or not the drug/substance would alter job performance. A legally prescribed drug means that an individual has a prescription or other written approval from a physician for the use of a drug in the course of medical treatment. It must include the patient's name, the name of the substance, quantity/amount to be taken, the period of authorization, and whether the prescribed medication may alter job performance. This requirement also applies to refills of prescribed drugs. The misuse or abuse of legal drugs while performing Metropolitan Council business is prohibited. 2.4 Unable To Provide Specimen Employees who are unable to provide a specimen or an adequate amount of specimen without a valid medical explanation will be regarded as failing to comply with testing requirements and will be disciplined in the same manner as an employee with a confirmed first positive test result; and subject to: 1. an unpaid suspension of 160 hours to be arranged by the supervisor; 2. mandatory referral to the SAP for evaluation; 3. release of information to management confirming compliance with SAP recommendations; 4. successful completion of a return-to-duty drug/alcohol test; and Page 7 of 25

8 5. submission to unannounced follow-up testing for up to 60 months as recommended by the SAP. 6. a second instance of failure to comply with testing requirements by an inability to provide a specimen or an adequate amount of specimen will be treated with the same consequences as a second confirmed positive test result, resulting in termination. 2.5 Treatment Requirements Any employee who refuses or fails to comply with requirements for treatment, after care, or return to duty will be terminated from employment. 2.6 Notifying The Metropolitan Council of Criminal Drug Conviction An employee must notify his/her immediate supervisor of any criminal drug conviction for a violation occurring in the workplace no later than 5 days after such conviction. An employee who fails to notify his/her immediate supervisor of such a conviction within five days shall be subject to disciplinary action, up to and including termination. In accordance with the Federal Drug-Free Workplace Act, The Metropolitan Council will notify the appropriate agency of the conviction within 10 days after receiving such notification. Within 30 days after receiving notice from a covered employee of a drugrelated conviction, the Metropolitan Council will take appropriate action against the employee up to and including termination, or require the employee to satisfactorily participate in a drug abuse assistance or rehabilitation program. 3.0 Testing Methods For Prohibited Substances The Metropolitan Council will strive to ensure the highest integrity in drug and alcohol testing and reporting procedures. The Metropolitan Council will work with the Medical Review Officer (MRO), the collection sites, and the laboratory to ensure that the integrity of the testing process is maintained. All tests will be performed by a trained collection professional in a setting which affords privacy to the individual being tested. Employees being tested must provide the proper form of employee identification to the collector upon arrival at the collection site. Acceptable forms of identification include: 1. A photo identification (e.g., drivers license, employee badge issued by the Metropolitan Council, or any other picture identification issued by a Federal, State, or local government agency), or Page 8 of 25

9 2. Identification by an employer or employer representative. Note: If the employee cannot produce positive identification, the collector will contact the DER to verify the identity of the employee. The collection will not proceed until positive identification is obtained. The Metropolitan Council shall comply with 49 CFR Part 40, Procedures for Transportation Workplace Drug and Alcohol Testing Programs. 3.1 Alcohol Employees will be tested for alcohol just before, during, or immediately following the performance of an FTA safety sensitive function. Tests for alcohol concentration conducted for FTA safety sensitive employees will be performed utilizing an evidential breath testing device (EBT) that conforms to the specifications set forth in 49 CFR Part 40, including a manufacturer-developed quality assurance plan approved by the National Highway Traffic Safety Administration. The alcohol test shall be conducted by a trained breath alcohol technician (BAT) who has demonstrated competence in the operation of the device and use of the breath alcohol-calibrating unit. The test shall be conducted in a manner that provides the employee with privacy to the greatest extent possible. The testing site shall be secured, with no unauthorized access at any time the EBT is unsecured or when testing is occurring. The BAT shall conduct only one test at a time and shall not leave the testing site while the preparations for testing or the test itself are in progress. The EBT operator shall not be the employee s direct supervisor. If the initial test indicates an alcohol concentration of 0.02 or greater, a second confirmation test utilizing an EBT will be performed. The confirmation test must be conducted not less than 15 minutes, but not more than 30 minutes after completion of the initial test. Even if more than 30 minutes have passed since the screening test result was obtained, we will begin the confirmation test procedures will begin, but not another screening test. Before the confirmation test is administered, the BAT shall conduct an airblank on the EBT. If the reading is greater than 0.00, the BAT shall conduct one more airblank. If the second airblank reading is greater than 0.00, that EBT shall not be used to conduct the test. If the initial and confirmatory test results are not identical, the confirmation test result shall be deemed to be the final result. If the result displayed on the EBT itself is not the same as that on the printed form produced by the EBT, the test shall be canceled, and the EBT removed from service. Page 9 of 25

10 An employee who has a confirmed alcohol concentration of 0.02 or greater, but less than 0.04 will be removed from his/her position without pay for a minimum of eight hours or until the end of the scheduled workday. The employee will not be allowed to return to work until he/she has an alcohol test showing an alcohol concentration of less than A confirmed alcohol concentration of 0.04 or greater will be considered a positive alcohol test and in violation of this Policy and will subject the employee to the discipline provisions outlined in Section 6.0. A covered employee with a confirmed alcohol concentration of 0.04 or greater will be prohibited from performing or continuing to perform safety-sensitive functions. 3.2 Drugs A covered employee may be randomly tested for prohibited drug use anytime while on duty. The split sample method of collection shall be utilized to test urine specimens. Urine specimens shall only be collected by a licensed medical professional or medical technologist or technician who is provided instruction for collection under 49 CFR Part 40 and who performs the collection and certifies completion as required therein; or by a person who has successfully completed training as a collector as required by 49 CFR Part 40. The collection site person shall not be the direct supervisor of the covered employee, and may not be related to the employee or a close personal friend. Urine specimens shall only be collected at secure, designated collection sites which have all necessary personnel, materials, equipment, facilities and supervision to provide for the collection, security, temporary storage and shipping or transportation of specimens to a certified drug testing laboratory. Under the split sample method of collection, individuals are required to provide at least 45 ml of urine. If the individual is unable to provide at least 45 ml, the collector shall urge the individual to drink a maximum of 40 ounces of fluids over the course of up to three hours. The individual shall again attempt to provide a complete specimen. If the individual fails for any reason to provide 45 ml of urine within three hours the test shall be discontinued and the collector shall contact the MRO to obtain guidance on the action to take. It is not a refusal to test if the employee declines to drink. Page 10 of 25

11 A minimum of 45 ml of urine is required for the split specimen procedure to be utilized under this Policy. The urine specimen must be split and poured into two (2) specimen bottles. Thirty (30) ml shall be poured into one bottle, to be used as the primary specimen. At least 15 ml shall be poured into the other bottle, to be used as the split specimen which shall also be forwarded to the laboratory. Specimens shall be placed in containers designated to minimize the possibility of damage during shipment to the laboratory and shall be securely sealed to eliminate the possibility of undetected tampering. Urine specimens shall be analyzed by a laboratory certified under the Department of Health and Human Services (DHHS) Mandatory Guidelines for Federal Workplace Drug Testing Programs. The laboratory shall be secure at all times and shall use chain of custody procedures to maintain control and accountability of specimens from receipt through completion of testing, reporting of results, during storage, and continuing until final disposition of specimens. The Metropolitan Council s laboratory is identified in the supplemental attachment. The drug testing laboratory shall have a quality assurance program which encompasses all aspects of the drug testing process including, but not limited, to specimen acquisition, chain of custody, security and reporting of results, initial and confirmatory testing, certification of calibrators and controls, and validation of analytical procedures. Quality assurance procedures shall be designed, implemented, and reviewed to monitor the conduct of each step of the process of testing for drugs. In addition, there shall be laboratory quality control requirements for both initial and confirmation tests. An initial drug screen will be conducted on the specimen by the testing laboratory utilizing an immunoassay that meets the requirements set forth in 49 CFR Part 40. For those specimens that are not negative, a confirmatory test will be performed using gas chromatography/mass spectrometry (GC/MS). The laboratory shall report the test results to the Metropolitan Council s Medical Review Officer (MRO), who shall be a licensed physician with knowledge of substance abuse disorders and appropriate medical training for reviewing and interpreting drug test results. The MRO shall review the test results, as set forth in Section 5 of this Policy, and determine whether the test results are positive or require further investigation. Further investigation is required for tests that are reported as adulterated, substituted, dilute, invalid or canceled. Page 11 of 25

12 Employees with a verified positive drug test, as determined by the MRO, will be immediately removed from performing any safety-sensitive functions. Employees with an adulterated or substituted test result, who do not provide a valid medical explanation as determined by the MRO, will be reported to the DER as a refusal to test, will be immediately removed from performing any safety-sensitive functions, Employees with a negative, but dilute, specimen will be required to take another test immediately. Employees who receive an invalid test result, and who do not provide a valid medical explanation, will be required to take another test immediately. This second test will be an observed test. Employees who have a test that is determined by the MRO to be canceled, will be required to take another test under limited circumstances as set forth in 49 CFR Part 40, including pre-employment tests, return-to-duty tests, and follow-up tests. Employees with a confirmed positive drug test, as determined by the MRO, will be subject to the discipline provisions outlined in Section Observed Drug Tests Procedures for collecting urine specimens shall allow individual privacy except under limited circumstances as set forth in 49 CFR Part 40. In these circumstances, an individual may be required to submit to an observed urine collection. Arrangements will be made with the collection provider to assure the collector or observer is the same sex. The following circumstances are the only grounds constituting a reason for requiring an observed drug test: When an individual submits a urine specimen which is determined by the collection professional to be outside the normal temperature range.. When the collection site staff witnesses during a collection conduct which indicates an attempt to substitute or adulterate the sample, or if inspection of the sample by the collector suggests tampering. The employee will be required to undergo an observed collection immediately. When a previous sample was determined to be invalid and the MRO has determined there was no adequate medical explanation. Page 12 of 25

13 When a previous sample was canceled because the split sample test could not be performed and the initial test was reported as positive, adulterated, or substituted after review by the MRO. When the test administered is a return-to-duty test or a follow-up test. 4.0 Categories of Testing Employees who perform FTA safety sensitive functions will be subject to the categories of testing listed below, as provided under 49 CFR Part Pre-Employment Testing All applicants who have received a conditional offer of employment shall undergo drug testing with a verified negative result prior to performing a safety-sensitive function. Failure to successfully complete the testing requirements, including passing the drug test, will result in a referral to a SAP and withdrawal of the job offer. Failure of an applicant to keep an appointment for testing, or to provide a sufficient specimen does not constitute a refusal to test or comply with the testing requirements. If an applicant s drug test is canceled, the Metropolitan Council shall require the applicant to take another pre-employment drug test. The DER will notify the applicant if the Medical Review Office (MRO) has canceled a test. Under Part 40 rules, the MRO will cancel a test that is scientifically insufficient or suspect because of irregularities. Applicants who do not successfully pass and complete the testing requirement will be disqualified from employment for a period of 12 consecutive months following the test. All applicants are required to provide written consent to the Metropolitan Council to conduct a record check of previous DOT-regulated employers regarding the applicant s drug and alcohol testing record during the two years before the application. Current employees who have not performed a safety-sensitive function for 90 calendar days must undergo a pre-employment drug test unless the employee has been in the random selection pool during that period. The employee must receive a verified negative drug test result before being permitted to perform a safetysensitive function When an applicant has failed or refused a pre-employment drug test administered under this part, the employee must provide the Metropolitan Council proof of having successfully completed a referral, evaluation and treatment plan as set forth in Section 7.0 of this Policy. 4.2 Transfers to FTA Safety Sensitive Jobs Page 13 of 25

14 Employees who do not perform an FTA safety sensitive function, who are conditionally offered an FTA safety sensitive position, will be required to submit to a urine drug test prior to transfer with a verified negative result. If a transferee s drug test is canceled, the Metropolitan Council shall require the transferee to take another pre-employment drug test. The DER will notify the transferee if the Medical Review Office (MRO) has canceled a test. Under Part 40 rules, the MRO will cancel a test that is scientifically insufficient or suspect because of irregularities. All employees who are transferring to a safety-sensitive job are required to provide written consent to the Metropolitan Council to conduct a record check of previous DOTregulated employers regarding the employee s drug and alcohol testing record during the two years before the transfer Failure to successfully complete the testing requirement will result in withdrawal of the job offer. In addition, an employee who fails to successfully pass and complete the testing requirement will be subject to the discipline provisions outlined in the Metropolitan Council Drug/Alcohol Policy covering employees in non-safety sensitive positions. 4.3 Reasonable Suspicion Testing All employees will be subject to a fitness for duty evaluation, including drug and alcohol testing, when there are reasons to believe that the covered employee has used a prohibited drug and/or engaged in alcohol misuse. A reasonable suspicion referral for testing will be made by a supervisor/manager that has received appropriate and required reasonable suspicion training and the decision will be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the covered employee. Alcohol testing will be conducted only if the observations are made during, just preceding, or just after the employee has performed a safety-sensitive function. Employees will be required to submit to a urine drug and breath alcohol test once reasonable suspicion has been determined. Employees will be placed on paid administrative leave pending the results of the drug test, and if the breath alcohol test indicates the presence of alcohol at less than If the confirmatory alcohol test indicates the presence of alcohol at 0.02 or greater, but less than 0.04, the employee will be placed on unpaid administrative leave for a minimum of eight hours or until the results of the drug test are received. The employee will not be allowed to perform safety-sensitive duties until he/she has a negative alcohol test showing an alcohol concentration of less than Page 14 of 25

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